United States District Court, D. Columbia
October 25, 2005.
THERESA WESTON SAUNDERS, Plaintiff,
DISTRICT OF COLUMBIA, AND. NATWAR M. GANDHI, individually and in his official capacity as District of Columbia Chief Financial Officer, AND. EARL C. CABBELL, individually and in his official capacity as Supervisor, Defendants.
The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
Plaintiff Theresa W. Saunders brings this action against
Defendants the District of Columbia, Natwar M. Gandhi,
individually and in his official capacity as District of Columbia
Chief Financial Officer, and Earl C. Cabbell, individually and in
his official capacity as Supervisor. Plaintiff alleges that
Defendants unlawfully terminated her employment in the Office of
the Chief Financial Officer based on her race in violation of
42 U.S.C. §§ 1981, 1982, 1983, and 1985; her gender and age in
violation of Title VII, 42 U.S.C. § 2000e et seq.; and the
Federal False Claims Act, 31 U.S.C. § 3730. Before this Court is
Defendant District of Columbia's 12(b)(6) Motion to Dismiss
Plaintiff's Complaint for failure to state a claim. Based on the
reasons set forth in this memorandum, Defendant District of
Columbia's Motion to Dismiss is GRANTED in part, DENIED in part, DENIED WITHOUT PREJUDICE in part, and HELD IN
ABEYANCE in part.
This suit arises from the District of Columbia's termination of
Plaintiff's employment in 2000. Amended Complaint ("Am. Compl.")
¶ 26. Plaintiff is an African-American female, born October 11,
1954, who had been hired by the District of Columbia in August of
1982. Am. Compl. ¶¶ 5, 10. While employed by the District of
Columbia, Plaintiff served as financial manager, controller, and
Chief Financial Officer ("CFO"). Am. Compl. ¶ 16.
In 1999, Plaintiff was asked by then District of Columbia CFO
Valerie Holt to become Acting CFO for the Office of the Chief
Technology Officer ("OCTO"), headed by Chief Technology Officer
("CTO") Suzanne Peck. Am. Compl. ¶ 13. While serving as Acting
CFO for OCTO, Plaintiff alleges to have discovered and reported
on numerous contract payment violations as well as an overall
lack of internal control in management of funds connected to the
District's Y2K project. Am. Compl. ¶ 14. In September 1999,
Plaintiff forwarded to Ms. Peck a memorandum recommending a
disallowance of more than $13 million against a claim filed by
IBM. Am. Compl. ¶ 47. While Ms. Peck acknowledged the
recommendation, no action was taken. Am. Compl. ¶ 47. Plaintiff
alleges that after reporting on these inconsistencies, she became
the target of reprisals and that Ms. Peck called for Plaintiff to
be removed from OCTO and any OCFO position. Am. Compl. ¶ 14.
Plaintiff was reassigned as CFO of the District of Columbia
Lottery and Charitable Games Control Board ("D.C. Lottery"),
where she worked between October of 1999 and May of 2000. Am.
Compl. ¶ 10, 14.
In late May of 2000, Plaintiff was contacted by Stanley
Jackson, the District of Columbia's Chief of Staff for the Chief
Financial Officer. Am. Compl. ¶ 20. Mr. Jackson told Plaintiff
that she was being considered as a candidate to become a member
of the Special Projects Team ("SPT"), headed up by Defendant Earl Cabbell. Am. Compl. ¶ 20. On June 19,
2000, Plaintiff was informed by Mr. Jackson that she was being
transferred to the SPT. Am. Compl. ¶ 21.*fn1 When Plaintiff
informed Mr. Jackson that she was not interested in the staff
position because it would require her to change from a management
position to a staff position, Mr. Jackson told her that "it was
either take the transfer or have no job." Am. Compl. ¶ 21. As a
result of the transfer from CFO for the D.C. Lottery to SPT staff
member, Plaintiff's salary was reduced. Am. Compl. ¶ 21.
Plaintiff initially worked part-time at both SPT and the D.C.
Lottery in order to ensure a smooth transition at the D.C.
Lottery. Am. Compl. ¶ 22. Plaintiff reported to SPT full-time
beginning on June 30, 2000 and worked at SPT for approximately
three weeks. Am. Compl. ¶¶ 24, 25. On July 25, 2000, Plaintiff
was asked to meet with Lou Parker, who presented her with a
separation letter, dated July 21, 2000, which was to be effective
30 days after receipt. Am. Compl. ¶¶ 24, 26. Plaintiff was also
then informed that she was immediately placed on 30-days paid
administrative leave. Am. Compl. ¶ 26. The separation letter did
not include a reason for her termination, it merely stated
"[t]hat it is necessary to discontinue your employment with the
Office of the Chief Financial Officer (OCFO) for the District of
Columbia." Am. Compl. ¶ 26. Plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission
("EEOC") on March 30, 2001 alleging sex discrimination. Am.
Compl. ¶ 3; Plaintiff's Exhibit ("Pl.'s Exh.") A.*fn2 Plaintiff alleges that her termination was both "directly and
solely attributable" to her gender and her race and "pretextual
in that the true reason for [her] termination was that the
Defendants were aware that she knew of the Defendants' sloppy
accounting procedures and fraudulent activities." Am. Compl. ¶¶
35, 36. Plaintiff states that both Defendant Gandhi and Defendant
Cabbell "did not believe in the appointment of females to CFO
positions."*fn3 Am. Compl. ¶ 17. Plaintiff states that after
her termination, she was replaced by a male. Am. Compl. ¶ 27.
Plaintiff's Complaint essentially sets forth six counts that
can be placed into three categories.*fn4 First, Plaintiff
alleges racial discrimination based on 42 U.S.C. §§ 1981, 1982,
1983, and 1985. Am. Compl. ¶¶ 14, 48.*fn5 Plaintiff's § 1981
claim is based on the discrimination she suffered in allegedly
not being permitted to report to District of Columbia CFO Mr.
Gandhi because of her race. Am. Compl. ¶ 30; Plaintiff's
Memorandum in Opposition to Defendant District Columbia's [sic]
Memorandum of Points and Authorities in Support of the Motion to
Dismiss ("Opp'n") at 16. Plaintiff's § 1982 claim is based on her
discharge from the OCFO. Am. Compl. ¶ 36; Opp'n at 17.
Plaintiff's § 1983 claim is based on the alleged deprivation of
her property and liberty interests when she was terminated in
violation of the Fifth Amendment. Am. Compl. ¶¶ 42, 43; Opp'n at 17-18. Plaintiff's Amended Complaint alleges a §
1985 claim based on Defendants' conspiracy to deprive her of her
rights. Am. Compl. at 14. Plaintiff alleges that her discharge
constituted gender and age discrimination in violation of Title
VII, 42 U.S.C. § 2000e et seq. Am. Compl. ¶¶ 36, 48; Opp'n at
19. Plaintiff alleges that her termination was a direct result of
her raising the issue of improper and fraudulent business
practices in violation of the Federal False Claims Act,
31 U.S.C. § 3730(h). Am. Compl. ¶¶ 35, 36. For the reasons set forth below,
Defendant District of Columbia's Motion to Dismiss is granted in
part, denied in part, denied without prejudice in part, and held
in abeyance in part.
II: LEGAL STANDARDS
Under Rule 12(b)(6), a motion to dismiss should be granted only
if the "plaintiff can prove no set of facts in support of [its]
claim which would entitle [it] to relief." Kowal v. MCI Commc'n
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (citing Shuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). When
considering a motion to dismiss, the Court must resolve all
factual doubts in favor of the plaintiff and allow the plaintiff
the benefit of all inferences. See EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
Notwithstanding this liberal construction, "the court need not
accept inferences drawn by plaintiffs if such inferences are
unsupported by the facts set out in the complaint. Nor must the
court accept legal conclusions cast in the form of factual
allegations." Kowal, 16 F.3d at 1276; see also Papasan v.
Allain, 478 U.S. 265, 286 (1986). Since Plaintiff has attached
exhibits to her Complaint, those exhibits are considered by this
Court to be part of the Complaint, and will be considered in
determining the sufficiency of the Complaint. Fed.R.Civ.P.
A. Civil Rights Claims Plaintiff alleges civil rights violations of 42 U.S.C. §§ 1981
and 1982 based on race discrimination, 42 U.S.C. § 1983 based on
a deprivation of her liberty and property interest without due
process of law in violation of the Fifth Amendment, and
42 U.S.C. § 1985 based on a conspiracy to deprive her of her rights and
privileges. For the reasons set forth below, Defendant's Motion
to Dismiss is denied as to Plaintiff's § 1981 claim, granted as
to her §§ 1982 and 1985 claims, and denied without prejudice as
to her § 1983 claim.
1. 42 U.S.C. § 1981 Claim
Defendant's primary argument in support of its Motion to
Dismiss Plaintiff's § 1981 claim is that Plaintiff failed to make
out a claim of race discrimination in her Complaint and pleaded
only gender discrimination. Defendant District of Columbia's
Memorandum of Points and Authorities in Support of the Motion to
Dismiss ("Memo") at 5. Defendant relies on case law, none of
which is from this Circuit or the District of Columbia,
indicating that when an attached document contradicts statements
made in a Complaint, the document controls. Memo at 4 n. 2; Reply
Brief in Support of Defendant's Motion to Dismiss ("Reply") at
1-2. Defendant argues that Plaintiff's Exhibit A, Plaintiff's
EEOC discrimination charge, alleges only gender discrimination,
not race discrimination. Memo at 4. Therefore, Defendant argues,
Exhibit A is controlling and contradicts Plaintiff's allegations
of race discrimination in her Complaint, resulting only in an
allegation of gender discrimination, not race discrimination.
Id. If Defendant's argument is to be accepted, this Court would
have to dismiss Plaintiff's § 1981 claim because § 1981 is not a
source of redress for anything other than race discrimination.
See Runyon v. McCrary, 427 U.S. 160, 167 (1976); Wesley v.
Howard Univ., 3 F. Supp. 2d 1, 3 (D.D.C. 1998) (stating that
"[g]ender claims are not cognizable under § 1981").
However, this Court finds that Defendant's argument fails for
two reasons. First, Plaintiff explicitly states in her Complaint that her § 1981 claim is based
on race and not gender discrimination. Am. Compl. at 14.
Therefore Defendant's argument that § 1981 does not apply to
gender discrimination lacks merit.
Second, there is no requirement in this Circuit that a § 1981
claim for race discrimination be first made in an EEOC
discrimination charge; therefore the Complaint and Exhibit A are
not contradictory. In Lamont v. Forman Bros., Inc., the court
rejected defendant's argument that issues not first raised before
the EEOC could not later be raised in an § 1981 claim. Lamont v.
Forman Bros., Inc., 410 F. Supp. 912, 918 (D.D.C. 1976). In
rejecting this argument the court relied on the Supreme Court's
holding in Johnson v. Railway Express Agency, Inc., which
emphasized "the complete `independence of the avenues of relief
respectively available under Title VII and . . . § 1981.'"
Lamont, 410 F. Supp at 918 (quoting Johnson v. Railway Express
Agency, Inc., 421 U.S. 454, 460 (1975)). While Defendant here
makes a slightly different argument, that Plaintiff's failure to
allege race discrimination in her March 30, 2001 EEOC
discrimination charge contradicts her later allegation of race
discrimination in the Complaint, Lamont and Johnson are
instructive. If § 1981 claims do not need to be exhausted through
the EEOC process, then Plaintiff's inclusion of the § 1981 claim
in her Complaint does not contradict her EEOC complaint in
Exhibit A. Plaintiff's failure to make an EEOC race
discrimination charge therefore does not bar her from alleging
race discrimination in the Complaint. As a result, Defendant's
argument fails and the Motion to Dismiss is denied as to
Plaintiff's § 1981 claim.
2. 42 U.S.C. § 1982 Claim
Defendant makes two arguments in support of its Motion to
Dismiss Plaintiff's § 1982 claim. Memo at 6-7. First, as in its
argument regarding § 1981, Defendant claims that Plaintiff did
not make out a claim of racial discrimination because her
attached EEOC discrimination charge did not include race discrimination. Memo at 4, 7. However, as with
Plaintiff's § 1981 claim, Plaintiff clearly indicates that she is
bringing a race discrimination claim and not a gender
discrimination claim under § 1982. Am. Compl. ¶ 48. Therefore,
Defendant's argument that § 1982 applies only to race
discrimination and not gender discrimination is not applicable.
However, Defendant also argues that Plaintiff's § 1982 claim
fails because § 1982 is not applicable to employment
discrimination. Memo at 6. Plaintiff agrees that § 1982 does not
apply to employment discrimination claims; however she asserts
that "the Amended Complaint includes more than the employment
discrimination claim." Opp'n at 17. To support this assertion,
Plaintiff refers the Court back to the entire fact section of her
Amended Complaint. Opp'n at 17. The referenced section does
include more than just an employment discrimination claim it
also includes an alleged Federal False Claims Act claim. However,
none of the facts asserted in this section make out a cognizable
claim of race discrimination under § 1982. Section 1982 reads
"All citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell, hold, and convey real
and personal property." 42 U.S.C. § 1982. Plaintiff fails to
allege that Defendant rendered her unable to participate in any
of the enumerated activities of § 1982 either in the Amended
Complaint or in her pleadings. Defendant's Motion to Dismiss
Plaintiff's § 1982 claim is therefore granted.
3. 42 U.S.C. § 1983 Claim
Defendant makes two primary arguments in support of its Motion
to Dismiss Plaintiff's § 1983 claim.*fn6 Memo at 7-8. First,
Defendant claims that Plaintiff improperly pleaded deprivation of due process under the Fourteenth Amendment because the Fifth
Amendment applies to the District of Columbia. Memo at 7-8; see
Bolling v. Sharpe, 347 U.S. 497, 499 (1954); Propert v.
District of Columbia, 948 F.2d 1327, 1330 n. 5 (D.C. Cir. 1991).
However, the Amended Complaint clearly states that Plaintiff
alleges deprivation of due process as to her property right in
her employment under the Fifth Amendment. Am. Compl. ¶ 42.
Defendant's argument therefore lacks merit.
Defendant's second argument is that Plaintiff did not have a
property interest in her employment at the OCFO. Memo at 8.
Defendant bases this argument on three cases: District Council
20 v. District of Columbia, No. Civ.A. 97-0185(EGS), 1997 WL
446254 (D.D.C.); Alexis v. District of Columbia, No. Civ.A.
98-0151 RMU, 1999 WL 680384 (D.D.C.); and Leonard v. District of
Columbia, 794 A.2d 618 (D.C. 2002). It is true that each of
these cases supports Defendant's assertion that OCFO employees
are at will employees as to whom the property rights granted by
the Comprehensive Merit Personnel Act ("CMPA") did not apply.
District Council 20, 1997 WL 446254, at * 7 (holding that OCFO
employees "did not have a protected property interest in their
employment at the time they were discharged"); Alexis, 1999 WL
680384, at *3; Leonard, 794 A.2d at 626 (finding OCFO employees
had been converted to "at will" employees).
However, the events giving rise to the cases above either
explicitly or impliedly occurred prior to September 30, 1997.
This is significant because each of the cited cases relies on
Section 152 of a 1996 appropriations bill titled the Omnibus
Consolidated Rescission and Appropriations Act of 1996 ("OCRA").
Pub.L. No. 104-134, 110 Stat. 1321 (1996). Section 152(a) of
this Act, provides:
Notwithstanding any other provision of law, for the
fiscal years ending September 30, 1996 and September
(a) the heads and all personnel of the following
offices, together with all other District of Columbia executive branch accounting, budget, and
financial management personnel, shall be appointed
by, shall serve at the pleasure of, and shall act
under the direction and control of the Chief
The Office of the Treasurer.
The Controller of the District of Columbia.
The Office of the Budget.
The Office of Financial Information Services.
The Department of Finance and Revenue.
The District of Columbia Financial Responsibility and
Management Assistance Authority established pursuant
to Public Law 104-8, approved April 17, 1995, may
remove such individuals from office for cause, after
consultation with the Mayor and the Chief Financial
OCRA § 152(a), Pub.L. No. 104-134, 110 Stat. 132 (emphasis
added). It is undisputed that Plaintiff was discharged from the
OCFO in 2000. Plaintiff, however, does not contest Defendant's
reliance upon the abovementioned cases in her Opposition. Due to
a failure to fully brief the application of OCRA § 152(a) to
Plaintiff's § 1983 claim, the Court will deny Defendant's Motion
to Dismiss without prejudice exclusively to allow Defendant to
fully brief this argument should there be a legal basis to claim
that Plaintiff was an at-will employee. Defendant may submit an
additional briefing to the Court on this point by November 28,
2005. If Defendant fails to submit a pleading by November 28,
2005, addressing the above deficiency, the Court will deny
Defendant's Motion to Dismiss with respect to Plaintiff's § 1983
claim. If Defendant does submit a pleading by November 28, 2005,
Plaintiff's Opposition to said pleading will be due to the Court
by December 12, 2005, and Defendant's Reply will be due to the
Court by December 19, 2005.
4. 42 U.S.C. § 1985 Claim
Plaintiff agrees to the dismissal of her § 1985 claim. Opp'n at
18. Therefore Defendant's Motion to Dismiss Plaintiff's § 1985
claim is granted.
B. Title VII Gender Discrimination Claim
Title VII sets forth a series of deadlines that must be met in
order to have a properly filed Title VII claim. 42 U.S.C. § 2000e-5. When there is a state
agency that exists in order to handle alleged unlawful employment
practice claims, the complainant must wait 60 days "after
proceedings have been commenced under the State or local law"
before filing a discrimination charge with the EEOC, "unless such
proceedings have been earlier terminated."
42 U.S.C. § 2000e-5(c). It is not contested that the District of Columbia
Office of Human Rights ("OHR") is the agency given the power in
the District of Columbia to deal with unlawful employment claims.
See Pl.'s Exh. A (giving OHR as the state or local agency on
the EEOC discrimination charge). Further, when the complainant
has initiated proceedings with the State agency, the complainant
has 300 days from the date of the occurrence of the alleged
unlawful employment practice to file a charge with the EEOC.
42 U.S.C. § 2000e-5(e)(1). The Supreme Court has determined that the
result of the 60-day deferral period on the 300-day limitation
for filing a EEOC charge means that "a complainant must file a
charge with the appropriate state or local agency, or have the
EEOC refer the charge to that agency, within 240 days of the
alleged discriminatory event in order to ensure that it may be
filed with the EEOC within the 300-day limit." Equal Employment
Opportunity Comm'n v. Commercial Office Prod. Co., 486 U.S. 107,
111 (1988) (citing Mohasco Corp. v. Silver, 447 U.S. 807, 814
n. 16 (1980), for the rule).
Defendant moves to dismiss Plaintiff's Title VII gender
discrimination claim because it is time barred. Memo at 11.
Defendant argues that the statute of limitations for filing an
EEOC charge began to run on July 25, 2000, the date upon which
Plaintiff was notified of her termination. Memo at 11; Am. Compl.
¶¶ 26, 33. Plaintiff did not file her EEOC charge until March 30,
2001. Am. Compl. ¶ 3; Pl.'s Exh. A; Memo at 13. In Chardon v.
Fernandez, the Supreme Court affirmed its holding in Delaware
State College v. Ricks, 449 U.S. 250 (1980), when it determined
that the "proper focus is on the time of the discriminatory
act, not the point at which the consequences of the act become painful." Chardon v. Fernandez, 454 U.S. 6, 8
(1981). In Ricks, a Title VII action was deemed time-barred
because Ricks filed his claim after the statute of limitations
had run, using his receipt of a terminal contract as the event
from which the limitations period commenced.
Plaintiff does not contest that she was notified of her
termination on July 25, 2000. Opp'n at 19. She does contend,
however, that because she "continued to work and continued to
experience discrimination the Defendant's violations were
continuing." Opp'n at 19. However, Plaintiff's argument is
contradicted by her own Amended Complaint. In her Amended
Complaint, Plaintiff claims that the notification letter she was
given on July 25, 2000 made her termination effective 30 days
later and that she was immediately placed on 30-days paid
administrative leave. Am. Compl. ¶ 26. Plaintiff therefore did
not work past July 25, 2000 and thus could not have experienced
any new discriminatory acts. The Supreme Court in Ricks noted
that "[m]ere continuity of employment, without more, is
insufficient to prolong the life of a cause of action for
employment discrimination." Ricks, 449 U.S. at 257. In order to
properly allege a continuing violation, Plaintiff would have had
to allege a present violation after receipt of the notification
letter, not just the effects of a past violation. United Air
Lines, Inc. v. Evans, 431 U.S. 553, 558-59 (1977). Given that
Plaintiff's own Amended Complaint states that she was placed on
immediate 30-days paid administrative leave by the same letter
that also notified her of her termination 30 days hence,
Plaintiff did not allege a violation after her notification of
termination. Therefore, the proper date on which the 300-day
statute of limitations to file with the EEOC began to run was
July 25, 2000, the date of her notification.
However, the EEOC filing deadlines are altered by the presence
of a state agency like the OHR. 42 U.S.C. § 2000e-5(e). Unlike in
Commercial Office Products, neither party in the instant case
alleges that OHR and EEOC had a workshare agreement in effect at
the time of Plaintiff's filing of her EEOC discrimination charge. See Memo at 13 n. 4
(noting the existence of a workshare agreement between EEOC and
OHR effective between October 1, 1999 and September 30, 2000);
Opp'n at 19 (failing to allege the existence of a workshare
agreement at the time of filing her EEOC discrimination charge);
Commercial Office Products, 486 U.S. at 107, 112, 125 (noting
the existence of a workshare agreement and holding that the
waiver of the state agency's 60-day deferral period under the
workshare agreement "`terminated' its proceedings within [the]
300-day limit"). The lack of an effective workshare agreement
waiving OHR's 60-day deferral period thus means that Plaintiff's
discrimination charge must have been filed within 240 days of the
alleged discriminatory act on or before March 22, 2001. Since
the charge was filed first with the EEOC, the EEOC would have had
to refer the charge to OHR and given it 60 days to remedy the act
before the EEOC could have taken action. 42 U.S.C. § 2000e-5(d).
Thus if the charge had been filed within 240 days of the alleged
discriminatory act, EEOC would have been able to act within the
statutorily prescribed 300-day limit. Due to the undisputed fact
that the charge was not filed until March 30, 2001, 248 days
after Plaintiff was notified of her termination, Plaintiff's
Title VII gender discrimination claim is time-barred. While it
should be noted that "if the complainant does not file within 240
days, the charge may still be timely filed with the EEOC if the
state or local agency terminates its proceedings before 300
days," this exception did not materialize in this case.
Commercial Office Products, 486 U.S. at 111-12. Defendant's
Motion to Dismiss Plaintiff's Title VII claim is granted.
C. Federal False Claims Act Claim
Plaintiff's final claim is brought under the Federal False
Claims Act, 31 U.S.C. § 3730. Am. Compl. ¶¶ 38, 46. Defendant
originally moved to dismiss this claim based on untimeliness.
However, Defendant misconstrued Plaintiff's claim as one brought
under D.C. Code § 2-308.16(b) and moved to dismiss it based on the one-year statute of
limitation contained in the District of Columbia Whistleblower
Protection Act. Memo at 10, 11. In addition, Defendant argues
that Plaintiff failed to assert that she disclosed information
relating to a false claims action that was, or was going to be,
filed as required by the statute. Memo at 10-11. In her
Opposition, Plaintiff noted that Defendant's arguments were based
on the wrong statute and that under the Federal False Claims Act,
there is a four-year statute of limitations such that the claim
was not time barred. Opp'n at 18-19.*fn7
Plaintiff does not address the substantive deficiencies (that
the claim does not allege a disclosure of information related to
a Federal False Claims Act claim that was or was going to be
filed) raised by Defendant. In its Reply, Defendant states that
Plaintiff "does not allege that she disclosed information `in
furtherance of an action under this section.'" Reply at 2
(quoting 31 U.S.C. § 3730(h)). Although Defendant addresses a
similar substantive deficiency of the Amended Complaint in its
Memorandum, that substantive deficiency was based on D.C. law,
not on the Federal False Claims Act. Memo at 10-11. A party may
not make a key argument for the first time in its reply because
it gives the non-moving party no opportunity to respond to the
argument. See Goldring v. District of Columbia, 416 F.3d 70, 77
n. 4 (D.C. Cir. 2005) (refusing to consider one of defendant's
arguments because it was raised for the first time in its reply
brief) (citing Presbyterian Med. Ctr. of the Univ. of Penn.
Health Sys. v. Shalala, 170 F.3d 1146, 1152 (D.C. Cir. 1999)).
There are other key issues that were not addressed by both
parties related to the Plaintiff's Federal False Claims Act
claim. Due to a failure to fully brief the claim on the following
issues, Defendant's Motion to Dismiss Plaintiff's Federal False Claims
Act claim is held in abeyance to give the parties an opportunity
to address the following outstanding issues. First, the parties
must indicate to the Court the applicable statute of limitations.
Second, Plaintiff must show that she followed the procedures set
forth in 31 U.S.C. § 3730(b) and (c) for filing an action under
the Federal False Claims Act. For example, when a Federal False
Claims Act claim is made by a private person, that action must be
brought in the name of the United States Government.
31 U.S.C. § 3730(b)(1). Furthermore, a copy of the complaint in such an
action must be served on the United States Government.
31 U.S.C. § 3730(b)(2). Plaintiff must also show that the United States
Government elected not to proceed with the action before she will
be permitted to proceed on the action solely in her own name.
31 U.S.C. § 3730(c)(3). Finally, Plaintiff must show that she was
"discharged, demoted, suspended, threatened, harassed, or in any
other matter discriminated against" by her employer because of
her lawful actions "including investigation for, initiation of,
testimony for, or assistance in an action filed or to be filed
under this section. . . ." 31 U.S.C. § 3730(h). Defendant also
needs to brief whether it is has standing to move for dismissal
of this claim. It is unclear whether the funds Plaintiff
determined to be fraudulently disbursed to IBM were federal funds
or District funds. Am. Compl. ¶ 47. Plaintiff may submit an
additional pleading exclusively to address the deficiencies in
her Federal False Claims Act claim to the Court by November 28,
2005. If Plaintiff fails to submit a pleading by November 28,
2005, addressing the above deficiencies, the Court will grant
Defendant's Motion to Dismiss with respect to Plaintiff's Federal
False Claims Act claim. If Plaintiff does submit a pleading by
November 28, 2005, Defendant's Opposition, due to the Court by
December 12, 2005, must address Defendant's standing to move for
dismissal of this claim. Plaintiff's Reply to Defendant's
Opposition is due to the Court by December 19, 2005. IV: CONCLUSION
For the reasons set forth above, Defendant's motion as to:
1. Plaintiff's 42 U.S.C. § 1981 claim for race
discrimination is DENIED;
2. Plaintiff's 42 U.S.C. § 1982 claim for employment
discrimination based on race is GRANTED;
3. Plaintiff's 42 U.S.C. § 1983 claim for violation
of due process under the Fifth Amendment is DENIED
WITHOUT PREJUDICE; Defendant's additional briefing is
due to the Court by November 28, 2005; Plaintiff's
opposition is due to the Court by December 12, 2005;
Defendant's reply is due to the Court by December 19,
4. Plaintiff's 42 U.S.C. § 1985 claim is GRANTED;
5. Plaintiffs Title VII claim is GRANTED;
6. Plaintiffs Federal False Claims Act claim is HELD
IN ABEYANCE; Plaintiff's additional briefing is due
to the Court by November 28, 2005; Defendant's
opposition is due to the Court by December 12, 2005;
Plaintiff's reply is due to the Court by December 19,
© 1992-2005 VersusLaw Inc.